Yale Law School, Public Law & Legal Theory Research Paper Serieshttp://papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalBrowse&journal_id=184032The Yale Law School Public Law & Legal Theory Research Paper Series journal contains abstracts and papers from this institution focused on this area of scholarly research. To access all the papers in this series, please use the following URL: <a href="http://www.ssrn.com/link/yale-public-law.html" target="new">http://www.ssrn.com/link/yale-public-law.html</a>en-us2017-11-07 00:00:00.0https://www.ssrn.com/rss/SSRN RSS Generator 1.0editor@ssrn.comwebmaster@ssrn.comInequality Rediscoveredhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009931<a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=767376" target="_blank">David Singh Grewal</a> and <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=394695" target="_blank">Jedediah S. Purdy</a><br />Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life: that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last four decades. In this intellectual history of the anomalous period, we trace the main lines of that optimism and its undoing.2017-11-07 08:10:31.0http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009931The Family's Constitutionhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=3046259<a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=895187" target="_blank">Douglas NeJaime</a><br />This symposium essay considers the interaction between family law and constitutional law. Conventional understandings assume that family law and constitutional law exist in relatively separate spheres, occasionally meeting when constitutional law, exercising power in a top-down way, dictates new directions for family regulation. But accounts of this kind fail to capture the dialogic relationship between family law and constitutional law. Family law and constitutional law often occupy the same space, contribute to understandings of the same issues, and interact in mutually constitutive ways. Further, family law exerts influence over constitutional law, shaping the terrain on which constitutional adjudication occurs, structuring constitutional conflict, and orienting constitutional reasoning. Ultimately, this essay suggests that, with respect to divisive conflicts over the family, conventional understandings of the relationship between family law and constitutional law both underestimate the power of state family law developments and overestimate the power of federal courts applying federal constitutional law.
This essay captures the dialogic relationship between family law and constitutional law by drawing on my earlier work on the relationship between LGBT legal mobilization and the resolution of claims to marital and parental recognition. Contestation in family law over the meaning of marriage and parenthood has shaped understandings of these institutions for purposes of constitutional doctrine, and constitutional doctrine has in turn shaped family law disputes over the contours of marital and parental recognition.2017-11-07 08:11:09.0http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3046259'Vital' State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in Federal Courtshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=3044728<a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=68368" target="_blank">Judith Resnik</a><br />The 1966 revision of Rule 23 has shaped our political and legal imagination. Building on the 1950 ruling of Mullane v. Central Hanover Bank, which approved the possibility of binding absentees nationwide through representative litigation, Rule 23 expanded the groups eligible for class treatment. Aggregation responded to felt social needs — for banks to pool trusts, school students to enforce school desegregation injunctions, and consumers to pursue monetary claims too small to bring individually.
Key to the legitimacy of doing so for Rule 23’s drafters was “the homogeneous character” of claims, permitting an identity of interests between the representative and absent members of the class. The 1966 Rule 23 put judges in charge twice: first, to determine the shape of the class and the adequacy of the representation and second, if a compromise was proposed, to assess again whether representative plaintiffs had proffered a fair and adequate resolution.
Rule 23 gave a limited role to absentees, many of whom were in mandatory classes from which no exit was possible. Added on late in the drafting was a mandate to provide notice at the outset that class actions were pending. That notice was required only for a subset of cases; individuals with monetary stakes were given formal opportunities to “opt-out” — even if, as a practical matter, individual lawsuits were not likely feasible.
While not producing a mass of opt-outs, notice requirements have pushed the processes of class actions into the public realm. Class actions gained a visibility not only because of the stakes and the judicial decisions on certification and settlement but also through mass mailings that brought the idea of class actions into the homes of millions of potential beneficiaries of lawsuits.
Aspirations and utility thus combined to reframe constitutional understandings of the “process due” by legitimating courts to deal in the aggregate without individuals affirmatively consenting to participate when cases began. But what fifty years of experience with class actions and related forms of aggregation — including multi-district litigation (MDL) and bankruptcy — have made plain is that an aggregate litigation’s life-span often continues after settlement or trial. New information can emerge then about difficulties in effectuating relief, as can conflicts among claimants, whose “homogeneous character” may diminish after resolution. Thus, aggregate litigation in practice has come to have three phases — certification, resolution by settlement or trial, and implementation of remedies.
Critics of class actions, aiming to disable their use, rely on problems of implementation as part of an argument against permitted certification at the outset, as they invoke due process rights of both defendants and absent plaintiffs. A new law of due process is also emerging in the arena of personal jurisdiction — as the Supreme Court circumscribes the ability of courts to decide claims involving non-resident defendants. I bring that doctrine into discussions of class actions, first because the Supreme Court expanded the ability to aggregate in 1950 by expanding jurisdiction and second, because the Court’s decisions reflect unease with adjudicative authority not founded on relationships among the forum and those whose rights are decided. The concern about ensuring that defendants are “at home” parallels class action notice, as both seek forms of affiliation between litigants and the jurisdictions deciding their rights.
The Supreme Court has used its new personal jurisdiction law to circumscribe the scope of courts’ reach. Here I propose to borrow its concerns for the opposite purpose — to build affiliations so to expand the authority of courts during aggregation’s third phase. Because aggregation’s pooling of resources has new importance today, as tens of thousands of civil litigants appear in state and federal courts without lawyers, revising its practices is one way for democratic polities to help all classes of persons have access to court-based remedies.
In 1950 in Mullane, the Supreme Court approved what has been called “jurisdiction by necessity” to license state courts to determine the rights of all claimants when lawsuits had a nexus with the forum and notice was provided. In this century, the Court should likewise recognize the necessity of giving judges jurisdiction to oversee aggregation and post-settlement so as to monitor implementation, respond to conflicts, and assess distributional equities. And, just as the 1966 Rule drafters turned to notice as a means of doing “something” to connect litigants with courts, notice can again be put to work during aggregation’s third phase to provide the “publicity” (to borrow from Jeremy Bentham) that makes connections possible and that forces the practices of courts, lawyers, and auxiliary personnel before the public.2017-11-07 08:11:32.0http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3044728